Family Law FAQs
- Can I obtain a divorce in Massachusetts?
- How do I respond if I am served with a divorce complaint?
- How long does it take to get divorced?
- What financial protection will I have during the divorce proceeding?
- How are the assets of a married couple divided?
- Do the courts always award alimony?
- How are child custody, co-parenting and visitation issues decided?
- What can I do if I am being physically abused or feel threatened by physical abuse?
- What can I do if a false allegation of physical abuse is made against me?
- Is hard-fought litigation always necessary?
- Who is responsible to pay my legal fees?
- What is the likely outcome of my case?
- What is a prenuptial agreement?
Can I obtain a divorce in Massachusetts?
If you live with your spouse in Massachusetts, you may seek a divorce here. Moreover, if you have resided in Massachusetts for at least one year, even if you have not previously resided with your spouse in Massachusetts as a married couple, you may seek a divorce in Massachusetts.
How do I respond if I am served with a divorce complaint?
Within 20 days of being served with a complaint, you are required to (1) file with the court an answer in which you respond separately to each allegation made in the complaint, and (2) serve a copy of the answer upon the attorney representing your spouse, or, if he or she is not represented by counsel, directly upon your spouse. In addition, if you also wish to seek a divorce, you are required to file, simultaneously with your answer, a separate counterclaim setting forth the relevant factual information as well as the legal basis for your counterclaim. Commonly, the answer and counterclaim are set forth on the same document. How long does it take to get divorced?
Under Massachusetts family law, you may file a divorce complaint as a contested divorce on the basis of fault of the other party (for instance, adultery or cruel and abusive treatment), or on the ground of irretrievable breakdown of the marriage. If you proceed with a contested divorce, the court cannot enter a Judgment of Divorce for at least six months after the filing of the complaint. Moreover, as a practical matter, due to the considerable volume of cases pending in the probate and family courts, it is likely that resolution of a contested divorce case will take well in excess of six months. As an alternative procedure, you and your spouse may file for an uncontested divorce by filing a Joint Petition for Divorce. To do so, you and your spouse must first reach an understanding on all relevant issues, (for example, the division of property, co-parenting arrangements, and extent to which, if any, child support or alimony shall be paid by one party) and have executed a comprehensive written agreement incorporating all of the terms. When the case is uncontested, there is no minimum amount of time that must pass before the court may enter Judgment of Divorce. Therefore, the court may schedule a hearing on a Joint Petition for Divorce soon after it is filed. Finally, even if a divorce is initiated as a contested case, you and your spouse may amend the complaint to proceed on an uncontested basis, if you have reached agreement on all relevant issues.
What financial protection will I have during the divorce proceeding?
Upon filing a complaint for divorce, an automatic restraining order (pertaining to assets) takes effect. The restraining order prevents either party from liquidating, selling, transferring or otherwise disposing of assets in a manner inconsistent with the ordinary course of business or usual living circumstances. (The order is effective upon the plaintiff at the filing of the complaint, and upon the defendant upon service of the complaint). This measure of court-imposed financial protection enables the court to act very quickly in the event of an apparent violation of the order, and authorizes the court to impose a wide range of sanctions against the offending party. While your case is pending, if you have limited access to family assets and income, the court can enter temporary orders for your support and the support of children in your custody.
How are the assets of a married couple divided?
The division of marital assets is a complex and often contentious matter. In most cases, the parties reach a negotiated agreement on the division of assets after there has been full and complete financial disclosure, (click the following link for a copy of the Court’s Long Form Financial Statement that the parties are required to complete). In the absence of an agreement, the court will render a decision on the equitable division of property after a trial. Under the provisions of Mass. Gen. Laws c. 208 sec. 34, the court must consider all of the following factors in reaching its determination:
- Length of marriage;
- Conduct of parties ;
- Amount and sources of income;
- Vocational skills;
- Opportunity for future acquisition of capital assets and income; and
- Present and future needs of dependent children (if any).
In addition, in determining the equitable division of the assets, the court may also consider: (1) the contribution of each party to the acquisition, preservation and appreciation of the marital estate; and (2) the contribution of each as a homemaker to the family unit.
When considering an equitable division of property, the court is authorized to consider all property, whenever, wherever or however acquired. Thus, the fact that real estate and/or personal property was acquired by one party prior to marriage (or that title to the property is held individually) does not insulate that property from the court’s consideration in arriving at an equitable division of property.
Do the courts always award alimony?
No. Alimony is a ‘need’-based form of support. In this context, need is defined as the standard of living to which the parties became accustomed during the marriage. Like determining an equitable division of property, in deciding whether and what amount of alimony a spouse will pay to another, the court must consider all of the mandatory factors set forth in Mass. Gen. Laws c. 208 sec. 34 (these factors are listed above, under “How are the assets of a married couple divided?”) A court may also consider the contributions each party made to the marital estate and the family unit.
Of course, the parties often are able to agree on the question of alimony. A critical consideration is the fact that alimony is deductible, dollar-for-dollar, from the payer’s total adjusted gross income on his or her income tax return, and correspondingly is includable as ordinary income by the recipient on his or her income tax return. Child support, on the other hand, is not deductible by the payer and is not includable by the recipient. Thus, income tax implications are an important consideration in negotiating the amount and duration of alimony.
How are child custody, co-parenting and visitation issues decided?
In deciding issues relative to children, the court must consider what is in the best interests of the child. If parties reach an agreement on custody and visitation, the court, absent compelling reason to reject the agreement, will allow the parties to determine those matters. If, however, the parties are unable to resolve these issues, the court will look at all relevant circumstances (a discretionary standard), including, among other things, age of the children, day-to-day routine and which parent has been primarily responsible for the daily care. The court will enter a provision for care, custody and financial support of the child(ren) in the Judgment of Divorce, Judgment of Paternity or Judgment of Custody.
In certain instances, the court may appoint an independent third party (generally a mental health professional) to serve as Guardian Ad Litem (‘GAL’). The court generally directs a GAL to investigate the relevant circumstances surrounding custody and visitation, and file with the court a report containing his or her findings, and, in certain circumstances, recommendations. The court may consider the GAL’s findings in arriving at a decision as to the appropriate custodial and visitation arrangements.
Finally, child-related matters are always subject to modification (again, either by agreement of the parties or by court judgment) in the event of a material change of circumstances.
What can I do if I am being physically abused or feel threatened by physical abuse?
SAFETY FIRST. If you are in the midst of being abused, the very first thing to do is call local and/or state police as soon as possible. (A telephone call to an attorney ‘ at that juncture ‘ is not helpful.) Moreover, if you are able to get away from your abuser, do so; sort out other issues ‘ like getting back into your home, and getting your personal belongings ‘ at a later time, with the assistance of the police and/or an attorney. In addition, if you have been subjected to abuse in the past, or have been threatened with physical abuse, you may apply for an Order For Protection From Abuse (commonly referred to as a Restraining Order or a 209A Order) that orders the abuser to remain away from your residence and place of business.
What can I do if a false allegation of physical abuse is made against me?
If the false allegations are the basis for an emergency restraining order against you, then, at a subsequent hearing, (which, under the law, must take place within 10 business days), you will have the opportunity to refute the allegations through your testimony and the testimony of witnesses on your behalf, the cross-examination of your accuser and by presenting the court with documents which support your position. If a false allegation of abuse is not used to obtain a restraining order, but instead to gain leverage against you in a divorce, or custody/visitation proceeding, then you must develop a strategy, ideally with an attorney, to demonstrate the falsity of the accusation(s).
Is hard-fought litigation always necessary?
Hard-fought litigation is not always necessary. If the parties are unable to reach agreement on the matters at hand, the parties may elect mediation, which is often highly effective in even the most difficult cases. The advantages of mediation include: it is voluntary and non-binding; the parties control the scheduling and can expedite resolutions, if desired; the process may be less stressful than a trial or other court hearing; and mediation is generally more cost-effective than contested litigation.
Who is responsible to pay my legal fees?
As a general matter, each party is responsible for paying his or her own legal fees and expenses. If your financial circumstances are such that your spouse has sole control of the finances, and you have no access to funds with which you can pay legal fees, you have a right to petition the court to order your spouse to release to you a portion of the funds with which you can pay your legal fees. Typically, the funds released are treated as a partial advance of your ultimate share of your marital property. There also are circumstances in which the court may order one party to pay a portion or all of the legal fees of the other. This situation typically arises in circumstances where it is apparent that a party has unduly prolonged the case and acted in a manner that created unnecessary litigation.
What is the likely outcome of my case?
The circumstances of any person seeking a divorce are unique. But it is almost always in your best interest to retain an experienced family law attorney who is sensitive to your situation and needs. After gaining an understanding of your objectives and performing a thorough investigation of the relevant facts, your lawyer should be able to assess the strengths and weaknesses of your position. Working together, you should be able to develop reasonable goals and a strategy calculated to succeed.
What is a prenuptial agreement?
A prenuptial agreement (also commonly known as a premarital agreement or ante nuptial agreement) is a contract between two persons intending to marry. The purpose of the agreement is to establish both parties’ respective property and other financial rights and obligations in the event that the marriage is terminated by divorce. In fact, the party seeking to enforce the agreement upon a divorce will ask the court to adopt the agreement as being determinative of each party’s rights and obligations relative to the issues covered by the agreement.
Prenuptial agreements typically address the issues of property division and spousal support. Although some agreements contain provisions related to the children (for example, child support obligations, or custody and visitation rights) the court always retains the authority to make the decisions relative to the minor children, irrespective of what the agreement calls for. Retaining that authority ensures that the child(ren)’s best interest(s) are protected.
Prenuptial agreements require complete and detailed written disclosure of the income, assets and liabilities of each party. Moreover, each party to a prenuptial agreement is strongly encouraged to obtain independent legal advice in connection with both the negotiating and the drafting of the agreement.
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The above information does not constitute legal advice but is offered for informational purposes only. If you want to receive legal advice you should retain a lawyer.